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the claimant shareholder’s votes would have sufficed to change the res-
olution if the alleged breach had not been made, e.g. if the sharehold-
er had been allowed to attend the meeting. If the shareholder’s number
or percentage of votes is not high enough to change the outcome, it is
considered that his/her absence from the meeting did not have any
influence. Taking into consideration this practice, in cases where
shareholders were prevented from attending a meeting, the possibility
of the claimant shareholder to have provided information or documents
that could influence other shareholders’ votes if he/she were allowed to
attend the meeting, is disregarded by the Turkish courts. This approach
certainly causes minimizing a shareholder’s right to voting, only, and
interpreting the influence rule simply in numerical terms.
In parallel with the TCC, the Swiss Code of Obligations also
includes the influence rule; however, limited to the cases where unau-
thorized persons attended the general assembly meeting. This causes
the influence rule to be implemented in very limited cases, and allows
shareholders in most cases claim for the annulment of the resolutions
due to above-explained breaches regardless of the influence. Tekinalp
explains the reason for the broad regulation of the influence rule under
the TCC as the prevention of small minority shareholders from chal-
lenging resolutions due to small irregularities that only concern them-
selves
2
, which is a tool against excessive litigation.
Consequences and Evaluation
Grounds for shareholders’ annulment cases against the general
assembly resolutions of joint stock companies are listed under the TCC
numerus clausus. Shareholders are obliged to rely on one of these rea-
sons. The TCC subjects the annulment cases to the influence of the
breach on the resolution considering the already settled case law
regarding the subject. Shareholders are obliged to prove that the breach
at hand influenced the general assembly resolution in order to have the
resolution annulled. The TCC did not adopt the provisions of Swiss or
German legislation concerning the annulment of the general assembly
resolutions due to the fact that the excessive number of decisions of the
Court of Appeals became the established practice in Turkey
3
.
32
NEWSLETTER 2015
2
Ünal Tekinalp
, Sermaye Ortaklıklarının Yeni Hukuku, p. 343.
3
Ünal Tekinalp
, Sermaye Ortaklıklarının Yeni Hukuku, p. 341.